A parliamentary route through Uluru impasse

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The Uluru Statement from the Heart is the only realistic starting point at this stage in Australian history for constitutional recognition of Aboriginal and Torres Strait Islander peoples. That's because after a series of Indigenous dialogues conducted under the auspices of the Referendum Council, all other options for constitutional recognition were rejected by the Aboriginal and Torres Strait Islander delegates at Uluru.

The Uluru Statement from the HeartThere is absolutely no point in proceeding with constitutional recognition other than recognition which is sought by those being recognised. It would be a waste of the parliament's time to consider any mode of constitutional recognition other than 'the establishment of a First Nations Voice enshrined in the Constitution'.

A First Nations Voice was rejected by Prime Minister Tony Abbott on 28 August 2015. After Uluru, it was rejected by Prime Minister Malcolm Turnbull on 26 October 2017, when he was joined by his Ministers Brandis and Scullion stating, 'The government does not believe such an addition to our national representative institutions is either desirable or capable of winning acceptance in a referendum.'

It was rejected again by Prime Minister Scott Morrison early in his prime ministership on 26 September 2018, when he said, 'I don't support a third chamber — People can dress it up any way they like but I think two chambers is enough ... But the implications of how this works frankly lead to those same conclusions. I share the view that I don't think that's a workable proposal.'

Despite what Messrs Turnbull and Morrison have said, I reject the classification of the First Nations Voice as a third chamber. Still, given that the proposal has been rejected by three Coalition prime ministers over the last three years (including the two most recent prime ministers since the Uluru statement was published), the question now is: what is the best way to proceed?

All commentators have accepted the four principles of the 2012 Expert Panel which were formulated to guide the assessment of proposals for constitutional recognition, including that each proposal 'must be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums'. With strong prime ministerial opposition backed by the ministry, there is presently no prospect of this proposal being supported by a strong majority 'from across the political and social spectrums'.

To move from Uluru to constitutional recognition, there are six possible routes for consideration by the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples:

 

"I am one of those citizens who would still like to see the 'race' provisions removed, but not as part of any reform for Indigenous recognition. Rather such amendments would be part of any modernisation of the Constitution."

 

1. The committee could recommend that the parliament proceed with a referendum in the foreseeable future in the knowledge that it does not enjoy the support of the government of the day.

2. The committee could recommend that the parliament proceed with a referendum but only after a national voice has been designed in consultation with Indigenous leaders with the design having then won bipartisan support in the Parliament.

3. The committee could recommend that a national voice be designed in consultation with Indigenous leaders with a view to legislating a national voice as a prelude to constitutional recognition.

4. The committee could recommend that a national voice be designed in consultation with Indigenous leaders, but that any decision about whether (a) to legislate a national voice as a prelude to constitutional recognition; or (b) to proceed with a referendum after a national voice has been designed, be deferred until the design process has concluded.

5. The committee could recommend against a referendum in the foreseeable future and recommend against the public design and legislation for a national voice, while recommending that resources be allocated for education of the public and of members of parliament about the benefits of a national voice.

6. The committee could recommend the abandonment of any consideration of a national voice, leaving in place the National Congress of Australia's First Peoples, and leaving open the option of a referendum on a proposal put forward by Indigenous leaders, if and when that proposal enjoys support from both the Government and the Opposition.

At the National Aboriginal and Torres Strait Islander Catholic Council Assembly earlier this month, I urged Indigenous members to consider Option 3, and I commended the Shorten Opposition for espousing Option 3. Not being Indigenous, it's not my call. But as a citizen, I would be strongly opposed to Option 1. In my opinion, a referendum doomed to fail would be a disaster for all Australians.  

Putting aside Option 1, I have urged the parliamentary committee to be attentive to Indigenous voices when considering Options 2, 3, 4, 5 and 6. There may of course be other options proposed to the committee by Indigenous Australians.

I am one of those citizens who would still like to see the 'race' provisions (sections 25 and 51(xxvi)) removed, but not as part of any reform for Indigenous recognition. Rather such amendments would be part of any modernisation of the Constitution. There is no need for the term 'race' to appear in an up to date Australian Constitution. Section 25 should be repealed and section 51(xxvi) replaced with a more contemporary head of power.

 

 

Frank BrennanFrank Brennan appeared today before the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples.

Topic tags: Frank Brennan, Uluru Statement, Constitutional Recognition, Aboriginal Australians

 

 

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Existing comments

This is a very helpful article concerning the future identity of our nation and her peoples. I'd like to read a sequential article that provides more detail about the development of a National Voice and its various implications. It might be helpful if all the churches and social justice bodies became involved as a forum for information and open discussion. As with the 'Sea of Hands', greater public involvement would take the matter beyond the knee-jerk reflexes of over-worked political leaders and generate much wider, more considered and more representative responses.
Dr Marty Rice | 16 October 2018


Thank you, Frank, for your informative, clear and considered articulation of the options before us on this vital issue.
John | 17 October 2018


Option 3 seems a considered and prudent option. Bipartisan support in parliament also, from the experience of past referendums, is necessary for success. This issue needs to be kept before the Australian people as indeed it is vital to all our futures. "Abstract picture now -/What they coming at?/Cripes, in our caves we/Did better than that." (from "No more boomerang" Oodgeroo Noonuccal).
Pam | 17 October 2018


What precisely is meant by a "national voice", Frank? Do not the Aboriginal people already have that in their right to vote and to be nominated and elected to the parliament? I have always understood that a "national voice" resides in the right to vote. Perhaps that is wrong? Should we not start with a formal treaty and the recognition of Aboriginal sovereignty in our defining symbols, the Flag and the Crest? I would love to see the Union Jack retained on the flag with the Aboriginal flag firmly planted on top of it leaving only the hint of the supplanted Jack as a border at the edges. That would recognise Aboriginal sovereignty around the word!
john frawley | 17 October 2018


The late Michael Gordon was the best informed, most trusted journalist in the press gallery covering Indigenous Affairs prior to his untimely death. This was his report in The Age on 29 August 2015 after a discussion with Prime Minister Abbott who had just returned to Cairns from a one week visit to communities in Cape York. It’s a report which warrants revisiting three years on:

Tony Abbott has warned advocates of strong constitutional recognition for Indigenous Australians they will ‘‘probably end up with a proposal that won’t pass’’ if they go for everything they would like in the referendum question.

The Prime Minister has also made plain that he does not support Noel Pearson’s proposal for an Indigenous advisory body to be enshrined in the constitution, saying the Parliament could establish such a body if it was deemed necessary.

In an exclusive interview with Fairfax Media, Mr Abbott maintained he had laid out the parameters for community debate on the question, but would not pre-empt the outcome of Indigenous-only conferences. ‘‘I’ve said it has got to be worth doing, but it’s got to be doable,’’ he said.

‘‘It’s got to be something that Indigenous people feel is a significant advance, but it can’t be something which is so significant a change to the constitution, as our foundation national document, that it gets rejected by the wider community for seeming to set up two classes of citizenship.

‘‘I don’t want to pre-empt the outcome of the community conferences, but I suppose I would encourage people to realise that if you go for everything you’d like, you’ll probably end up with a proposal that won’t pass.’’ Talking at the end of a week in remote communities in the far north of Cape York and the Torres Strait, an upbeat Prime Minister also asserted Australia had ‘‘turned the corner’’ on the road to reconciliation and closing the gap on Indigenous disadvantage.

He said a revolution in remote classrooms was ‘‘going to change individual lives and transform communities’’.

‘‘I don’t say that everyone’s life is transformed but enough lives are in the process of being transformed for us to be more confident about the future for Indigenous people than at any time in the last couple of hundred years.’’ Mr Abbott recently agreed to support Indigenous-only conferences on constitutional recognition after initially rejecting the idea on the grounds that they could produce ‘‘something akin to a log of claims that is unlikely to receive general support’’.

Although he has signalled his opposition to the most controversial recommendation from the expert panel on recognition – a ban on racial discrimination – he is yet to say explicitly that its inclusion would sink any referendum.

His comments for Fairfax Media, however, suggest the model he will be most comfortable with would give succinct recognition, remove one racist clause and amend the race power to become an Indigenous power.

Mr Pearson proposed the Indigenous body to be consulted on laws affecting Indigenous people as an alternative to a racial discrimination prohibition, which he is convinced will be opposed strongly by constitutional conservatives as akin to a bill of rights that would increase the power of the judiciary over the executive.

Mr Abbott also made plain his opposition to a separate proposal for recognition to be in the form of a lengthy declaration outside the constitution.

‘‘If you think that some kind of lengthy declaration on the place of Indigenous people in Australia over time is really important, the Parliament could deal with that,’’ he said.

‘‘If you think that a new representative body to provide advice to government is the way to go, the Parliament could deal with that.

‘‘What we should be on about is an appropriate form of Indigenous recognition which I suppose acknowledges the reality of modern Australia, which is that we have an Indigenous heritage, a British foundation and a multicultural character.’’

The government is expected to announce the membership of a Referendum Council to oversee national consultations in the next two weeks.


Frank Brennan SJ | 17 October 2018


Frank Brennan appears to have conceded the likely failure of a referendum on this topic in the foreseeable future. Attempting to contain the level of public discourse on the topic by a quiet soft shoe shuffling of sympathetic legislation into parliament has even less opportunity of success. This indirect method will solicit vigorous opposition and tarnish the proposal with an overlay of suspicion and hostility by those who have a legitimate wish to see constitutional change survive or fall by processes which honor the provisions for modifications to the Constitution
carey burke | 17 October 2018


Section 128 of the Constitution basically provides: ‘ The proposed law for the alteration [of the Constitution] must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.’

My attempt to outline the only realistic options for getting from Uluru to a referendum, including options for prior public design or legislation of the ‘Voice’, is not an exercise in ‘quiet soft shoe shuffling’. It is a respectful non-Indigenous outlining to our parliamentarians of the options they need to consider when being guided by the diverse Indigenous perspectives they have been hearing at the parliamentary inquiry.

I appreciate that some citizens would favour an immediate referendum which would assuredly lose were it to proceed. I am one Australian who thinks that would be a very bad idea for all of us.

But those like Carey who seem to who favour an immediate referendum (without prior design or legislation of the ‘Voice’) need to appreciate that nothing could proceed at this stage as the last three prime ministers have opposed the idea, and thus there would be no prospect of the House of Representatives passing the necessary enabling law required for any referendum. And I doubt that the Senate would be much interested either.


Frank Brennan SJ | 18 October 2018


Frank - it is not clear to me how you took my earlier comment to be an advocacy of an early referendum -"But those like Carey who seem to who favor an immediate referendum..." The request and timing of a referendum is surely an initiative best left to indigenous persons. What is an issue and a just concern for non indigenous Australian is what is actually being proposed. Your Option 3 seems to provide a vehicle of reflection for Indigenous leaders and parliamentarians, but seems sanguine about leaving the non indigenous population out of the discussion until some future occasion. You may have discerned a way forward. I am simply recording a definite doubt.
carey burke | 18 October 2018


Firstly, it’s pleasing to see Frank addressing his missive on the matter to parliamentarians rather than trying to tell our Indigenous people what they should do. Secondly, I agree that his option 1 would be unproductive and therefore inappropriate. Interestingly, his options 2 and 3 are expressed in quite different ways which, I suspect, reflect his preference for option 3. If option 2 were expressed thus: ‘ 2. The committee could recommend that a national voice be designed in consultions with indigenous leaders, for which broad community support would then be sought following which the formal process of constitutional change would be initiated’ ... It would sound a lot more positive.
Ginger Meggs | 18 October 2018


in my opinion there needs to be a definitive and round table discussion on this issue and let Australians have a say in it
maryellen flynn | 18 October 2018


My evidence to the Joint Select Committee is available at https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22committees%2Fcommjnt%2Fdaf567f2-abaf-4f4d-b2c8-85dc9df56b71%2F0001%22
Frank Brennan SJ | 04 November 2018


On 18 October 2018, Aboriginal Social Justice Commissioner June Oscar and two retired Aboriginal Human Rights Commissioners appeared before the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples. They had put in a submission with two other retired commissioners as well. All five commissioners (June Oscar, Mick Gooda, Mick Dodson, Bill Jonas and Tom Calma) were basically on the same page. Commissioner Mick Gooda said, ‘We also support a voice…But, at the moment—in my view, at least—I don't think there's enough clarity around what the voice is in order to actually go to a referendum. I hear a lot of calls to go to a referendum now. My guess is that some people have forgotten the first lesson we had in the expert panel, and that is: if Australians don't understand what they are voting for in a referendum they will vote no. For me, there are too many unknowns right now. I think that if we went to a referendum on the voice, in its purest sense—we just have a voice for Aboriginal and Torres Strait Islander people to parliament—I think that's a guarantee of failure.….If we went to a referendum now, as some people are advocating, on a simple question of whether there should be a voice to parliament for Aboriginal Torres Strait Islander people, without any detail about how it's going to be formed and constructed, it's a guarantee of failure. We're committed to a voice, but we think there's a process we've got to go through.’ I think he’s dead right. In these confusing times post-Uluru, we non-Indigenous Australians need to be attentive to all Indigenous voices including those who are presently members of our national parliament and those who have served on our national Human Rights Commission.
Frank Brennan SJ | 05 November 2018


I discussed this matter with David Speers at https://soundcloud.com/frank-brennan-6/david-speers-interview-5-11-2018
Frank Brennan SJ | 07 November 2018


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